Do I Need Planning Permission for My HMO?

From 1 October 2010, incorporating changes already made on 6 April 2010, planning rules are changed affecting HMOs in England.

What is an HMO?

A simple non-legal definition is that a house (or flat) is an HMO if there are three or more unrelated occupiers. 

There is also another type of HMO under section 257 Housing Act 2004, which provides for certain converted blocks of flats to be an HMO. 

Related is defined explicitly in the regulations, but a quick summary is that they must be family members, so brother, sister, cousin etc. See here for more information about HMOs.

What's changing?

Between 6 April 2010 and 30 September 2010, planning permission was/is required for an HMO (not section 257 HMOs) where there was a "material change in use". 

From 1 October 2010, this requirement will be removed for all HMOs. A change in use for HMOs with up to six persons will be a permitted development subject to a local authority not issuing a direction for a specific area where the permitted development does not apply.

What are use classes?

Under the Town and Country Planning (Use Classes) Order 1987, several classes of use are defined for which planning permission needs to be obtained. 

If a use is not mentioned in the use classes order, they are known as a Sui Generis use. Examples are theatres, car showrooms and filling stations. A Sui Generis use still requires planning permission but is likely to be more specific than the generally more broad definitions contained in specific use classes.

What is permitted development?

Permitted development is a list of developments that usually require planning permission but do not require consent because they are deemed to have planning permission. The list of permitted developments is contained in the Town and Country Planning (General Permitted Development) Order 1995. Examples of allowed developments include the erection of TV aerials, garden walls (up to specific dimensions) etc.

HMO Use Class

On 6 April 2010, the use classes order was amended, and a new HMO use (class C4) was added. The use classes order reads (so far as relevant):

“Class C3. Dwellinghouses

Use as a dwellinghouse (whether or not as a sole or main residence) by— (a) a single person or by people to be regarded as forming a single household; (b) not more than six residents living together as a single household where care is provided for residents; or (c) not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4). 

Interpretation of Class C3 For the purposes of Class C3(a) “single household” shall be construed in accordance with section 258 of the Housing Act 2004.”  

“Class C4. Houses in multiple occupation

Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”. 

Interpretation of Class C4 For the purposes of Class C4 a “house in multiple occupation” does not include a converted block of flats to which section 257 of the Housing Act 2004 applies but otherwise has the same meaning as in section 254 of the Housing Act 2004.”.  

Permitted Development

From 1 October 2010, the permitted developments order will be amended to allow a class C3 (family dwelling) to become a class C4 (HMO) without planning permission and vice versa. 

This is better than pre-April 2010 because only class C3 existed then, meaning the letting as an HMO was always possible to require planning permission (but rarely enforced). 

This new permitted development makes all HMOs up to six persons lawful in England as long as the local authority has not issued a direction that the permitted development does not apply to a certain area. The revised permitted development reads:

Class I Permitted development I Development consisting of a change of the use of a building— 

(a)to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order from a use falling within Class C4 (houses in multiple occupation) of that Schedule; 

(b)to a use falling within Class C4 of that Schedule from a use falling within Class C3.

When does the permitted development above NOT apply?

Under Article 4 of the permitted development order:

... if the local planning authority is satisfied that it is expedient that development described in any ... Class ..., should not be carried out unless permission is granted for it on an application, ... the local planning authority, may make a direction ... that the permission granted ... shall not apply to-

(a) all or any development of the ... Class ... in question in an area specified in the direction.

The approval of the Secretary of State is not required for a direction made under the above if the relevant authority considers the development would be prejudicial to the proper planning of their area or constitute a threat to the amenities of their area [Article 5(4) of the permitted development order].

Article 5 also contains the procedure for publicising a direction made by the local authority that a specific permitted development does not apply to a particular area or areas.  

I have a house that five students will occupy on 1 October 2010. Will I need planning permission?

As long as no direction is in force, then, no, planning permission will not be required because it is deemed to have planning permission (permitted development) from that date.

I have a house with ten people sharing. Do I need planning?

The new class C4 permitted development only, permitting the use for up to six persons. Therefore any property let to more than this has no specific class within the use classes order. 

The use of a property as an HMO with more than six people sharing is therefore known as a "Sui Generis". 

This type of use will generally require planning permission, and the new rules have made no change to this. 

A development requires planning permission. Development is defined by section 55 Town and Country Planning Act 1990 as being 

"...the making of any material change in the use of any buildings or other land..." 

Therefore, the question is, "Are ten people sharing a material change in use from six people?" The previous (April 2010) CLG Guidance states, 

"... The courts have held that the first thing to consider in determining whether a material change of use has occurred (or will occur) is the primary use of the land. Each case will always be a matter of fact and degree and require a judgement from the local planning authority in the first instance." [paras. 7 & 8] 

Local authorities have ten years to enforce planning, after which a landlord may defend an enforcement notice because it is out of time [s.171B(3) Town and Country Planning Act 1990.] 

If the property has a licence, it might be that if an enforcement notice were served on a licensed property, a critical defence would be as contained in s.174(2) TACPA 1990, namely,

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

Hossack, R (on the application of) v Kettering Borough Council & Anor [2002] EWCA Civ 886 may be helpful in this scenario.

I am a resident landlord, and I let to lodgers. Do I need planning permission?

This situation is still regarded as an HMO for section 254 Housing Act 2004 and would therefore fall under the new class C4. 

From 1 October 2010, the development will be permitted if up to six persons (and no direction is in force). 

However, if there were more than six persons, this situation would be slightly unusual because two classes are now involved (class C3 and C4). It could be argued that the primary use is that of a dwelling, and the lodgers are simply incidental to that use; therefore, there might not be a material change in use, and planning may not be needed.

(3) A use which is included in and ordinarily incidental to any use in a class specified in the Schedule is not excluded from the use to which it is incidental merely because it is specified in the Schedule as a separate use. [Article 3(3) Town and Country Planning (use classes) Order 1987].